WASHINGTON — Most people expect a justice system to provide justice. In recent years, however, the U.S. tort system has run wild. Plaintiffs eschew responsibility for their own actions, trial lawyers search for deep corporate pockets and experts-for-hire promote fantastic negligence theories. The resulting liability lottery simultaneously subverts the market and imposes a de facto tax. Unfortunately, the United States has begun exporting some of the worst aspects of its system to other nations.
Reform efforts in Congress and state legislatures have run into strong resistance from the tort bar. But the American Association for the Advancement of Science recently unveiled a program that should help screen out bad lawsuits.
Liability law was once straight-forward. Plaintiffs attempted to prove that defendants had injured them. Juries compensated successful plaintiffs for any damages incurred.
Unfortunately, cases are now increasingly decided irrespective of evidence regarding fault or causation. Creative lawyers work overtime to hold someone — anyone — else responsible for the faults of their clients. Sue the subway system when the drunk stumbles in front of the train and the school system when the would-be burglar falls through the school skylight.
At the same time, attorneys have proved increasingly successful in convincing juries to award huge judgments for modest injuries. Hundreds of millions for overcharging on two satellite dishes. Millions for a mispainted auto and hot coffee burns.
Perhaps the most dangerous perversion of tort law has been the rise of junk science. Attorneys find an “expert” or two and make extraordinary claims of causation — that electromagnetic waves cause cancer, that a bump from a fall causes cancer — despite the lack of scientific proof.
Some so-called experts are simple frauds. Others present “what is charitably called an educated guess,” said Marcia Angell, executive editor of the New England Journal of Medicine
The problem is not just individual cases. Mass torts have become the norm.
In the case of silicone breast implants tens of thousands of cases have been filed, hundreds of thousands of women have been frightened and an industry has been destroyed. Yet scores of studies have found no evidence that implants cause disease.
Reported a court-appointed expert panel last December: “No association was evident between breast implants and any of the individual connective tissue diseases, all definite connective diseases combined or the other autoimmune/rheumatic conditions.”
Unfortunately, these results of good science haven’t stopped plaintiffs from winning enough cases to impoverish implant-makers and encourage them to settle meritless lawsuits. Few juries or judges are competent to sort through competing claims of dueling advocates.
Thus, it is no solution to simply let everything in and see what’s left after cross-examination. The system will continue to encourage entrepreneurial attorneys to find the next deep pocket industry to sue and the next pseudo-scientist to promote.
Reforming U.S. tort law is no easy task. But judges can improve the process by acting as cautious gatekeepers.
As the U.S. Supreme Court ruled in Daubert vs. Merrell Dow Pharmaceuticals, “the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” This requires “a grounding in the methods and procedures of science.”
The goal is to prevent neither plaintiffs from airing controversial theories nor juries from exercising reasonable judgment in assessing competing claims. Rather, the objective is to require that arguments that purport to be scientific have a credible basis.
However, jurists obviously must understand whether scientific theories are well-grounded in order to screen out junk science. Thus, “judges increasingly need the assistance of independent experts,” argues Mark Frankel, head of the new Court Appointed Scientific Experts project of the American Association for the Advancement of Science.
The AAAS, with 144,000 member scientists worldwide, hopes to help educate judges in the intricacies of scientific research. The organization plans to work with engineering and scientific societies to identify objective experts. A jurist could then appoint one or more of these professionals to help sort through the issues in a complex case before they are presented to a jury.
This is, in fact, what federal District Judge Samuel Pointer did in 1996 when confronted with burgeoning breast implant litigation. After the four-member committee reported last December, Dr. Elizabeth Connell, who chaired two government hearings on implants, observed: the report “might not be the end of it, but it will be extremely helpful in putting the controversy to rest.”
Justice requires a well-functioning tort system. The U.S. doesn’t have one today. But the AAAS project will help the U.S. judicial system begin the long journey back to where it again dispenses justice.
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